I understand that we are not using the procedures of FAR Subpart 15.3; however, can we eliminate the proposal for price alone before entering into discussions with the other four offerors?
The Contracting Officer has the flexibility to use a trade-off method under the "fair opportunity" ordering procedures in FAR 16.505(b) as long as the planned order meets the criteria for "fair opportunity", is consistent with the ordering procedures stated in the contract and is documented in the solicitation for the planned task order. Per FAR 16.505 (b), Orders Under Multiple Award Contracts:
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(1) Fair opportunity.
(i) The contracting officer must provide each awardee a fair opportunity to be considered for each order exceeding $3,000 issued under multiple delivery-order contracts or multiple task-order contracts, except as provided for in paragraph (B )(2) of this section.
(ii) The contracting officer may exercise broad discretion in developing appropriate order placement procedures. The contracting officer should keep submission requirements to a minimum. Contracting officers may use streamlined procedures, including oral presentations. In addition, the contracting officer need not contact each of the multiple awardees under the contract before selecting an order awardee if the contracting officer has information available to ensure that each awardee is provided a fair opportunity to be considered for each order and the order does not exceed $5 million. The competition requirements in Part 6 and the policies in Subpart 15.3 do not apply to the ordering process. However, the contracting officer must?
(A) Develop placement procedures that will provide each awardee a fair opportunity to be considered for each order and that reflect the requirement and other aspects of the contracting environment;
(B ) Not use any method (such as allocation or designation of any preferred awardee) that would not result in fair consideration being given to all awardees prior to placing each order;
(C) Tailor the procedures to each acquisition;
(D) Include the procedures in the solicitation and the contract; and
(E) Consider price or cost under each order as one of the factors in the selection decision.
The Contracting Officer could decide to make any number of tradeoffs as long as the decision is consistent with the procedures in the contract for providing each contractor a fair opportunity to be considered for award. The government team would need to decide if conducting discussions is in the government's best interest taking into consideration the likelihood the lower priced, technically unacceptable offers could reasonably be made technically acceptable. Additionally, the government could attempt to achieve better pricing from the higher priced, technically acceptable offeror through discussions (perhaps by negotiating out excess performance) or could decide the higher priced proposal is too high for there to be a reasonable chance of making the proposed price fair and reasonable through discussions. Of course, the Contracting Officer's decision on who to keep in and who to eliminate from the competitive range, consistent with the evaluation process in the contract and the "fair opportunity" requirements in FAR 16.505(b), should be supported by the evaluation documentation for the planned task order. Finally, it's always a good idea to consult your legal advisor concerning the requirements for fair opportunity and to ensure compliance with your contract.